International Family Law News and Comment

Towards a comprehensive Juvenile Justice law

By ANIL MALHOTRA

The draft Juvenile Justice Bill, 2014, provides a comprehensive mechanism to deal with children in conflict with law as well as children who are in need of care and protection

CHILD RIGHTS: Cruelty to children, employment of children for begging and sale and procurement of children are acts that are punishable under the new draft Bill. The Juvenile Justice (Care and Protection of Children) Act, 2000 (JJ Act) has been amended twice: in 2006 and in 2011. More demands to amend the Act have been in the reckoning. There was, for instance, a public outcry demanding more stringent punishment for the prime accused, a juvenile, in the Delhi gang rape case of 2012. Besides crimes committed by juveniles, violence against them is also emerging as an important issue which needs to be redressed by strengthening the existing provisions. Protracted inter-country adoption procedures in the existing JJ Act need urgent legislative resolution. While personal laws allow specific communities to adopt, other persons can become guardians only under an archaic Guardians and Wards Act, 1890. A secular gender-neutral adoption law for all people is required.

Case studiesIn Stephanie Joan Becker v. State (2013), a single 53-year-old lady was permitted to adopt a 10-year-old girl orphan by relaxing the guidelines of the Central Adoption Resource Authority (CARA). Likewise, in Shabnam Hashmi v. Union of India (2014), the apex court that upheld the right to adopt and to be adopted as a fundamental right, also held that every person, irrespective of the religion he/she professes, is entitled to adopt. The judgment in Jan Balaz v. Anand Municipality (2010) is under challenge in the Supreme Court. Twin German children born through surrogacy were granted an exit permit on the Court’s directions to CARA to permit their adoption by German parents.

The apex court in a public interest litigation decided on March 28, 2014, in Dr. Subramanian Swamy and others v. Raju and others, refused to read down the provisions of the JJ Act, 2000, in order to account for the mental and intellectual competence of a juvenile offender and refused to interfere with the age of a juvenile accused, in cases where juveniles were found guilty of heinous crimes. It was held by the Court that the provisions of the Act are in compliance with Constitutional directives and international conventions. The Court further stated that the classification of juveniles as a special class stood the test of Article 14 of the Constitution, and that the Court should restrict itself to the legitimacy and not certainty of the law.

Broad amendmentsIn this backdrop, the Government of India is now contemplating re-enacting a new JJ Act, 2014, for which a review committee has been constituted under the Ministry of Women and Child Development. The baton has been passed on to Parliament to enact a new law.

The JJ Bill, 2014, seeks to enact a law by consolidating and amending the law relating to children who are in need of care and protection. It seeks to cater to their developmental needs through proper care, protection and treatment by adopting a child-friendly approach in the adjudication and disposal of matters, and for rehabilitation through processes provided and institutions established under the proposed new enactment.

The Women and Child Development Ministry has posted on its website a proposed draft of The Juvenile Justice (Care and Protection of Children) Bill, 2014, suggesting broad amendments. The draft states that the increase in reported incidents of abuse of children needs urgent legislative action; that there are inadequate facilities, quality of care and rehabilitation measures in private and government-run children homes; delays in various processes under the JJ Act; delays in inter-country adoption process under CARA; and inadequate provisions to deal with offences against children, among others.

The draft incorporates the principles of the Hague Convention on Protection of Children and Cooperation in Respect of Inter-Country Adoption (1993) which was absent in the original JJ Act, 2000. The new JJ Bill, 2014, provides for application of the proposed Act in: cases involving detention, prosecution or penalty of imprisonment; matters relating to apprehension, production before court, disposal orders and restoration, procedures and decisions related to adoption of children, and rehabilitation and reintegration of children who are in conflict with law or, as the case may be, in need of care and protection under other such law.

The word ‘juvenile’ has been replaced with the word ‘child’ and the expression ‘juvenile in conflict with the law’ has been changed to ‘child in conflict with law.’ While in the JJ Act, 2000, juveniles in conflict with the law are defined as the ‘accused’, the draft Bill identifies a ‘child in conflict with law’ to be one who has been found by the Juvenile Justice Board to have actually committed an offence. It also defines an ‘abandoned child’ as well as ‘aftercare’. Chapter two is the most noteworthy characteristic of the proposed Bill, providing for ‘Fundamental Principles for Care, Protection, Rehabilitation and Justice for Children’. It incorporates internationally accepted principles of presumption of innocence, dignity and worth, family responsibility, non-stigmatising semantics, privacy and confidentiality, repatriation and restoration, equality and non-discrimination, and diversion and natural justice, among others. Institutionalisation is suggested as a measure of last resort — juveniles are to institutionalised only if no other family-based care option is possible or available.

New procedureA new procedure for handling children in conflict with law has been proposed. A revamped Child Welfare Committee has been identified, empowered and given statutory functions. Mandatory registration of childcare institutions has been provided. Observation, shelter and special homes may be established by State governments.

CARA has been made a statutory body vested with functions of in-country and inter-country adoptions. Section 58 of the draft Bill lays down special emphasis on inter-country adoptions, stating that all applications for adoption shall be filed before a Principal Magistrate of the concerned jurisdiction where the registered adoption agency is located.

However, the proposed provision for adoption orders to be passed by the Principal Magistrate on the first date of hearing itself, or within a period of two weeks, failing which it will be construed by the higher authority of the Principal Magistrate, "as dereliction of duty", does not seem to be practical for actual implementation. Judicial proceedings have to be regulated by the Code of Civil Procedure and no fast-track procedure that bypasses rules of evidence can be proposed in contravention of law. Likewise, transgenders need adoption rights. The JJ Bill must encompass these issues.

The proposed Bill also prohibits the media from disclosing the identity of children or propagating any such information which would lead to identifying them. All reports relating to children are to be treated as confidential. Corporal punishment and ragging, cruelty to children, employment of children for begging, adoption without proper procedure, and sale or procurement of children for any purpose are all acts that are punishable under the draft Bill.

The draft Bill therefore provides a comprehensive mechanism to deal with children in conflict with law as well as children who are in need of care and protection. However, only a stringent implementation can provide a meaningful disposition to make it a true letter of law.

(Anil Malhotra is a Chandigarh-based lawyer. He can be reached at anilmalhotra1960@gmail.com)